Tuesday, April 11, 2006

US v. Bridgeforth, No. 04-50183 (3-29-06). 360 mos. is a long time. That was the defendant's sentence for a drug sale because of his career offender status. Will he serve it? The conviction was attacked first on the grounds that his cross of the informant was limited. This informant was a piece of work: she had worked for a large drug gang, had a drug problem, and after she initiated the drug sales, she was in a wreck in New Mexico where drugs and alcohol were found in the car. The defendants got to cross her on her prior drug sales and were able to read a stipulation to the jury about the bad stuff found in the crash. the 9th thought that it was okay to bar her work in the large drug cartel because when the FBI employed her, she wasn't asked about it, and so didn't lie. The 9th rationalized that the jury had her enough bad stuff.

The 9th also held that statements of a co-conspirator (of the "he's there" variety) were in furtherance of the conspiracy and not idle chit-chat because it demonstrated that the drugs were available. As for the career offender, the 9th did find that one predicate assault was a California "wobbler" which meant it could be either a felony or a misdemeanor. The defendant had been sentenced to one year after he violated probation, and the conviction was classified as a misdemeanor. Lucky for him. Sentence vacated and remanded. Congrats to AFPDs Michael Tanaka and Monica Know of the C.D. Ca. for the sentencing win.

US v. Mix, 05-10088 (3-30-06). The 9th affirms a variance upward to life imprisonment. The defendant committed numerous violent sexual and physical assaults on women for close to 20 years. His last victim was so savagely beaten that the treating physician had to leave the room to compose herself before she could begin treatment. The doctor was surprised she was alive.

The defendant was convicted of kidnapping and sexual assault charges, and two gun counts. The court had departed upward pre-Booker, and it was remanded for guideline error. In this post-Booker sentencing, the court detailed the horrid injuries, and the unspeakably violent acts, and believed that under 3553, as well as the guideline departure factors, a life sentence was warranted. The 9th found such a sentence reasonable. The 9th noted that the sentencing court took into account the purposes of sentencing under 3553, including public safety and deterrence, and the advisory nature of the guidelines. The 9th also found that the court considered mitigation factors under 3553 and the guidelines. the court felt that the defendant was faking mental illness, and failed to accept responsibility or show remorse, blaming the victims.3. US v. Biggs, No. 04-50613 (3-31-06). Defendant, an inmate at USP-Lompoc, stabbed another inmate inside a recreation cage. Defendant argued self-defense: he knew the victim was trying to procure a knife, and the victim had threatened him on the way to the cage. The court refused the self defense instruction, ruling that to make a prima facie showing, the defendant had to show that there were reasonable alternatives to force. Not so, held the 9th. Self-defense requires a showing of (1) a reasonable belief that the use of force was necessary; and (2) the use of no more force than was reasonable under the circumstances. The defendant does not have to present evidence of a reasonable alternative. That requirement is necessary for a defense of duress or coercion. The 9th rejects the 7th Circuit's requirement of such an element. This was error and reversed and remanded.Congrats to AFPD Elizabeth Newman, C.D. Ca, for the win.